MISRURAM Vs. GUDARMAL

JUDGEMENT

(1.) THIS is a revision application by the defendant against an appellate decree of the Senior Civil Judge No. 1, Jodhpur, decreeing a suit for recovery of damages for breach of contract against him. The suit was dismissed by the trial court.

(2.) IT is hot now disputed that the defendant agreed to sell 30 mds. red chillies to the plaintiff on 12. 1. 60 at Rs. 20/- per md. within two or three days. The defendant brought the chillies after two days and asked the plaintiff to weigh them. But he said that he was not prepared to given any quantity in excess of the standard weight. The plaintiff was not prepared to take the chillies by the standard weight. His case was that the defendant had contracted to sell them in accordance with local usage. What the local usage was. , was not specified in the plaint. The plaintiff stated that the usage was that the seller gave 2 or 2-1/2 seers of chillies in excess for every maund. The evidence of the witnesses of the plaintiff himself was discrepant. Ganpatlal stated that the usage was to give two seers in excess for every maund. According to Johrilal, Shambhuram and Ganeshmal 1-1/2 seers excess was to be given. According to Champalal chillies could be sold without giving any quantity in excess of the standard weight. In this state of evidence the learned Munsif held that no usage was proved, The appellate court however reversed this finding and held that there was a trade usage in accordance with which the plaintiff was entitled to. get some quantity in excess of the standard weight. IT did not determine what this quantity was. On the basis of the evidence produced on behalf of the plaintiff it cannot be said that any usage has been established. IT is true that a trade usage does not involve a consideration of antiquity. But unless it is certain it cannot be regarded as a usage. Local usages are imported into contracts because they tacitly form part of it. But a usage which is variable cannot form part of a contract tacitly. IT was not the case of the plaintiff that it was settled between him and the defendant how much quantity in excess of the standard weight would be given to him.